Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-2-131-148
A. Chirninov
According to Article 56 of the Russian Code of Criminal Procedure, “a judge and a juror may not be examined as a witness about the circumstances of a criminal case which they have become aware of while participating in it”. The Russian Supreme Court has interpreted this rule as imposing a categorical prohibition to examine a juror even though the defense submits and tries to prove that jurors were not impartial due to the extraneous influence and unlawful threats that they confronted in a jury room. As a result, this approach, instead of ensuring the confidentiality of jury deliberations, has been rather used to preclude the discovery of procedural irregularities in reaching a verdict. In its judgment of 7 July 2020, the Russian Constitutional Court has softened this unreasonable restriction by ruling that jurors’ witness immunity is not absolute and appellate courts must use their testimony to establish facts relating to alleged attempts to place unlawful pressure on a jury by undermining the secrecy of jury deliberations. Based on a case file, including the petition that the author of this article drafted and filed to the Russian Constitutional Court, the article reconstructs the arguments invoked by the parties in the course of constitutional proceedings and assesses the approach taken by the Russian Constitutional Court to decide the case. In particular, the court has allowed examining jurors, but only with their consent. Having studied the experience of the countries where a jury system has been present for a long time, namely the United States, Australia, New Zealand, Sri Lanka, and Myanmar, the author argues that a post-trial examination of jurors is a recognized way to ensure the right of a defendant to an impartial jury. Among other things, the foreign jurisdictions obligate a juror to inform a judge about attempts to unlawfully influence a jury, empowers a judge to determine if there are sufficient grounds for summoning jurors as witnesses, and sets standards of examination. However, none of these legal orders requires that a juror give consent for examination. Therefore, the article concludes that the integrity of jurors in Russia should be protected not by enabling them to testify before an appellate court at their discretion but by strengthening their legal immunity, which in turn will strike an optimal balance between competing constitutional values.
{"title":"Janus turns out to be one-faced: the judgment of the Russian Constitutional Court on the permissibility of examination of jurors in the light of foreign law","authors":"A. Chirninov","doi":"10.21128/1812-7126-2021-2-131-148","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-2-131-148","url":null,"abstract":"According to Article 56 of the Russian Code of Criminal Procedure, “a judge and a juror may not be examined as a witness about the circumstances of a criminal case which they have become aware of while participating in it”. The Russian Supreme Court has interpreted this rule as imposing a categorical prohibition to examine a juror even though the defense submits and tries to prove that jurors were not impartial due to the extraneous influence and unlawful threats that they confronted in a jury room. As a result, this approach, instead of ensuring the confidentiality of jury deliberations, has been rather used to preclude the discovery of procedural irregularities in reaching a verdict. In its judgment of 7 July 2020, the Russian Constitutional Court has softened this unreasonable restriction by ruling that jurors’ witness immunity is not absolute and appellate courts must use their testimony to establish facts relating to alleged attempts to place unlawful pressure on a jury by undermining the secrecy of jury deliberations. Based on a case file, including the petition that the author of this article drafted and filed to the Russian Constitutional Court, the article reconstructs the arguments invoked by the parties in the course of constitutional proceedings and assesses the approach taken by the Russian Constitutional Court to decide the case. In particular, the court has allowed examining jurors, but only with their consent. Having studied the experience of the countries where a jury system has been present for a long time, namely the United States, Australia, New Zealand, Sri Lanka, and Myanmar, the author argues that a post-trial examination of jurors is a recognized way to ensure the right of a defendant to an impartial jury. Among other things, the foreign jurisdictions obligate a juror to inform a judge about attempts to unlawfully influence a jury, empowers a judge to determine if there are sufficient grounds for summoning jurors as witnesses, and sets standards of examination. However, none of these legal orders requires that a juror give consent for examination. Therefore, the article concludes that the integrity of jurors in Russia should be protected not by enabling them to testify before an appellate court at their discretion but by strengthening their legal immunity, which in turn will strike an optimal balance between competing constitutional values.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126619185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-4-131-133
T. Morshchakova
{"title":"The rule of law and standards of restorative (conciliatory) justice: Instead of a foreword","authors":"T. Morshchakova","doi":"10.21128/1812-7126-2020-4-131-133","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-4-131-133","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126746101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-6-115-140
Aleksandra Uroshleva
The author examines the essence and characteristic features of the evolutionary interpretation in constitutional review bodies decisions and concludes given the relationship between processes of argumentation and interpretation, as well as definite characteristics and trends in the application of the evolutionary interpretation in different countries, that it is more appropriate to talk about the evolutionary approach in argumentation, not about a separate method of interpretation. An evolutionary constitutional interpretation, as it is stated in the article, does not necessarily mean going beyond the literal text of the basic law. A literal (textual) interpretation and an evolutionary approach are combined phenomena of different nature; they are allocated based on various criteria – the source (orientation on the text) and the socially adaptive result, respectively. The value of the evolutionary approach is associated with the possibility of “adjusting” constitutional norms to real social canvas without making changes to the text of a constitution. The author shows using the case law examples that an evolutionary interpretation can be expansive, that is aimed at increasing the scope of constitutional regulation (“filling” constitutional norms with “new” (additional) content, picking out new human rights, increasing their level of protection), and restrictive, that is narrowing the scope regulated and (or) protected by a constitution (reducing level of human rights guarantees or subject area of constitutional regulation). Considering through the prism of specific constitutional justice cases such doctrines as of a “living constitution” in the United States of America, a “living tree” in Canada and the concept of “judicial law development” in Germany, the author comes to the conclusion that an independent concept of the evolutionary approach in legal reasoning has not been formed yet in the Russian practice of constitutional justice. In this regard, it seems to be perspective direction to develop such a concept, especially in the context of a possibility of combining the evolutionary approach with original interpretation. It seems that despite the fact that the problem of judicial activism is not now a problem of current urgent interest in Russia, the constitutional amendments of 2020 have actualized the potential for an evolutionary interpretation of certain constitutional provisions.
{"title":"Evolutionary approach in reasoning practice of constitutional justice","authors":"Aleksandra Uroshleva","doi":"10.21128/1812-7126-2020-6-115-140","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-6-115-140","url":null,"abstract":"The author examines the essence and characteristic features of the evolutionary interpretation in constitutional review bodies decisions and concludes given the relationship between processes of argumentation and interpretation, as well as definite characteristics and trends in the application of the evolutionary interpretation in different countries, that it is more appropriate to talk about the evolutionary approach in argumentation, not about a separate method of interpretation. An evolutionary constitutional interpretation, as it is stated in the article, does not necessarily mean going beyond the literal text of the basic law. A literal (textual) interpretation and an evolutionary approach are combined phenomena of different nature; they are allocated based on various criteria – the source (orientation on the text) and the socially adaptive result, respectively. The value of the evolutionary approach is associated with the possibility of “adjusting” constitutional norms to real social canvas without making changes to the text of a constitution. The author shows using the case law examples that an evolutionary interpretation can be expansive, that is aimed at increasing the scope of constitutional regulation (“filling” constitutional norms with “new” (additional) content, picking out new human rights, increasing their level of protection), and restrictive, that is narrowing the scope regulated and (or) protected by a constitution (reducing level of human rights guarantees or subject area of constitutional regulation). Considering through the prism of specific constitutional justice cases such doctrines as of a “living constitution” in the United States of America, a “living tree” in Canada and the concept of “judicial law development” in Germany, the author comes to the conclusion that an independent concept of the evolutionary approach in legal reasoning has not been formed yet in the Russian practice of constitutional justice. In this regard, it seems to be perspective direction to develop such a concept, especially in the context of a possibility of combining the evolutionary approach with original interpretation. It seems that despite the fact that the problem of judicial activism is not now a problem of current urgent interest in Russia, the constitutional amendments of 2020 have actualized the potential for an evolutionary interpretation of certain constitutional provisions.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130184063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-5-118-137
T. Vasilieva
This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.
本文探讨了加拿大最高法院在宪法平等案件中适用人的尊严概念的方法的演变。传统上，在人权案件中，这一概念只会加强论点，表明侵犯行为影响到人的内在价值。只有在加拿大和南非才有应用这一概念作为确定歧视的标准的经验。1999年，在Law诉加拿大一案中，最高法院承认1982年《加拿大权利与自由宪章》第15(1)条的目的是保护人的尊严，并指出，歧视必须建立在评估一项计划或法律对人的尊严的影响的基础上。然而，在2008年的R. v. Kapp案中，最高法院指出，人类尊严概念的适用带来了困难，并给原告带来了额外的举证负担。并非巧合的是，歧视受害者倾向于向人权法庭和委员会寻求保护，因为这些法庭和委员会不使用以尊严为基础的检验标准。随后，加拿大最高法院拒绝使用人类尊严的概念作为确定歧视的标准。将人的尊严概念作为法律检验的失败经验表明，并非每一种理论上正确的法律建构在审判中都是有效的。
{"title":"The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights","authors":"T. Vasilieva","doi":"10.21128/1812-7126-2021-5-118-137","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-118-137","url":null,"abstract":"This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122733441","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-3-148-160
{"title":"Review of legal reasoning in the Russian Constitutional Court judgments: Nos.9-P–15-P, 1-Z • 2020","authors":"","doi":"10.21128/1812-7126-2020-3-148-160","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-3-148-160","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117013179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2021-5-15-41
A. Medushevsky
The European integration project as designed by its founders seventy years ago is experiencing difficulties in the current conditions of globalization, confronting challenges which were unpredictable beforehand. Many of these are of crucial character for the European Union, putting in question its constitutional organization, institutional structure, and political sustainability in the international balance of power. The list of most important issues includes ones like the yet incomplete character of the Union’s legal construction, which is balanced between supranational and national forms of regulation; the erosion of legitimacy of European institutions; the growing democracy deficits in transnational and national governance; the decline of solidarity in inter-governmental relations; and the falling level of accountability and decision-making mechanisms in Europe. The very natural response to these problems was a Pan-European discussion, stimulated by European elites after Brexit, on the future of the European project in order to frame existing opinions, provide a fresh start to “the European dream”, and possibly find appropriate solutions to legitimacy problems. An analysis of this ongoing discussion is the main subject of this article. This analysis involves such key issues as the future role of the EU founding agreements, as to keeping them or amending them in order to reconstruct the European constitutional settlement. It demonstrates the complex nature of the basic communitarian concept, in view of its various interpretations by different ideological trends such as cosmopolitism and confederation and federation movements. It explores the current agenda of institutional reforms involving parliamentarian and presidential strategies and reviews proposed solutions of the European leadership problem. The conclusion of the article makes it clear that the European Union is confronted today with the most dramatic challenge in its entire history. It consists in the necessity of making a decisive choice between two polar options — to preserve an amorphous conglomerate of states or to establish a new federal state. This must be done in a rather short period in order to avoid falling apart and to become a full-fledged and independent global political player.
{"title":"The future of Europe: a political discussion of prospects of the European Union integration project","authors":"A. Medushevsky","doi":"10.21128/1812-7126-2021-5-15-41","DOIUrl":"https://doi.org/10.21128/1812-7126-2021-5-15-41","url":null,"abstract":"The European integration project as designed by its founders seventy years ago is experiencing difficulties in the current conditions of globalization, confronting challenges which were unpredictable beforehand. Many of these are of crucial character for the European Union, putting in question its constitutional organization, institutional structure, and political sustainability in the international balance of power. The list of most important issues includes ones like the yet incomplete character of the Union’s legal construction, which is balanced between supranational and national forms of regulation; the erosion of legitimacy of European institutions; the growing democracy deficits in transnational and national governance; the decline of solidarity in inter-governmental relations; and the falling level of accountability and decision-making mechanisms in Europe. The very natural response to these problems was a Pan-European discussion, stimulated by European elites after Brexit, on the future of the European project in order to frame existing opinions, provide a fresh start to “the European dream”, and possibly find appropriate solutions to legitimacy problems. An analysis of this ongoing discussion is the main subject of this article. This analysis involves such key issues as the future role of the EU founding agreements, as to keeping them or amending them in order to reconstruct the European constitutional settlement. It demonstrates the complex nature of the basic communitarian concept, in view of its various interpretations by different ideological trends such as cosmopolitism and confederation and federation movements. It explores the current agenda of institutional reforms involving parliamentarian and presidential strategies and reviews proposed solutions of the European leadership problem. The conclusion of the article makes it clear that the European Union is confronted today with the most dramatic challenge in its entire history. It consists in the necessity of making a decisive choice between two polar options — to preserve an amorphous conglomerate of states or to establish a new federal state. This must be done in a rather short period in order to avoid falling apart and to become a full-fledged and independent global political player.","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131767920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2020-4-98-110
T. Vasilieva
{"title":"Constitutionalization of the human dignity concept","authors":"T. Vasilieva","doi":"10.21128/1812-7126-2020-4-98-110","DOIUrl":"https://doi.org/10.21128/1812-7126-2020-4-98-110","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115400765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.21128/1812-7126-2019-6-61-85
Sergei Manzhosov
{"title":"Reasoning by precedent in terms of balancing","authors":"Sergei Manzhosov","doi":"10.21128/1812-7126-2019-6-61-85","DOIUrl":"https://doi.org/10.21128/1812-7126-2019-6-61-85","url":null,"abstract":"","PeriodicalId":113514,"journal":{"name":"Sravnitel noe konstitucionnoe obozrenie","volume":"2012 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129416554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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